Employers, Know Your Rights!
Employment litigation has boomed in the last 20 years. Statutes such as the ADA and the FMLA have created new rights for employees. Decades-old laws such as Title VII (which prohibits many forms of discrimination) and the Fair Labor Standards Act (which sets the minimum wage and regulates overtime pay) remain popular among plaintiffs’ lawyers and their clients. The cost of litigation has increased as well. Employers can spend $50,000 in attorney’s fees defending even a baseless case. Naturally, you may be skittish about criticizing, much less terminating, your poorly performing employees. And you may be reluctant to ask your employees to sign agreements designed to protect your confidential business information.
Don’t be. In today’s ultra-competitive business environment, you cannot afford to retain poor performers. Nor can you afford to let employees take advantage of your hard work and intellectual property. Sure, employees have many legal rights. But as an employer, you too have rights. Here are just a few:
- You have the right to demand hard work. The law does not prohibit you from taking action against employees who are lazy or unproductive. Moreover, in most states you can require employees to work overtime, even weekends and holidays, provided that you pay your non-exempt employees the appropriate overtime wages. (Employees who are exempt as professionals, executives, administrators, and outside salespersons are not entitled to overtime compensation.) Weed out your unproductive employees and reward your hard workers with overtime pay when necessary.
- You have the right to demand high-quality work. Sloppy work product, poor customer service and arguments with co-workers and supervisors are not legally protected workplace behaviors. Put an end to them through a system of progressive discipline.
- You have the right to demand loyalty. Employees do not have a right to solicit business for their own benefit or to set up a competing business while you employ them. You can and should terminate employees who put their own interests ahead of your business.
- You have the right to be wrong. Suppose you have reason to believe that an employee is stealing or otherwise not acting in the company’s best interests, but you don’t have conclusive proof. Fortunately the law does not require an employer to act like a prosecutor and obtain proof beyond a reasonable doubt. So long as you act in good faith and without discrimination, you can lawfully act on your best available information, even if it turns out to be wrong.
- You have the right to protect your trade secrets and confidential business information. Many state laws protect against an employee’s misappropriation of trade secrets. But such statutes often define the term “trade secrets” narrowly. You should require employees who have access to customer lists, strategic plans, pricing information, financial data and other confidential business information to sign confidentiality agreements that restrict their use of such information during their employment and after. State law also may allow you to require employees to sign agreements not to compete with your business or to solicit your customers for a period of time after their employment ends.
You may already know what the law prohibits you from doing as an employer. But knowing what the law permits you to do – and doing it – will improve the productivity of your workforce and give you an advantage over your competition.